ALJDEC decisions subject to certification as final
2021A-04586-CHC-ROC · Registrar of Contractors · 2022-02-23
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Ann M. Negri and Gary Chontos,
COMPLAINANTS,
v.
Desert Living General Contracting LLC,
License No. ROC 178030,
RESPONDENT
No. 2021A-04586-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
VIRTUAL HEARING: February 3, 2022
APPEARANCES: Ann M. Negri and Gary Chontos appeared. Respondent failed to appear. Investigator David Fagerburg appeared.
ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn
_____________________________________________________________________
Respondent is the holder of License No. 178030, General Dual KB-2 Dual Residential and Small Commercial, issued by the Arizona Registrar of Contractors (Registrar) in 2002.
On or about September 16, 2021, the Registrar received Complainant’s Licensed Complaint Form (Complaint) regarding construction work on the interior/cabinetry and shelves in a master closet, contracted for on February 28, 2021. The contract amount was $24,556.32 and Complainant gave Respondent a $14,000.00 deposit. Within a narrative description of the complaint issues, Complainant indicated that the work had started on March 23, 2021 and that the last work was performed on July 19, 2021.
Registrar’s Investigator David Fagerburg broke out the Complaint narrative into 19 items and reviewed the project in light of the 19 items. As a result of the October 5, 2021 jobsite inspection, Investigator verified that the closet project was never completed as contracted and that the Respondent’s contract had not provided an estimated completion date.
Following the jobsite inspection, Investigator Fagerburg issued a Written Directive (Directive) dated October 13, 2021 verifying incomplete or inadequate work on 6 of the 19 complaint items. The Registrar set forth November 1, 2021 as the deadline for Respondent’s compliance with the Directive.
After November 1, 2021, Investigator Fagerburg reached out to Respondent and Respondent indicated that it anticipated giving a refund to Complainants. Investigator Fagerburg advised Respondent that if that circumstance did not materialize by November 9, 2021, the matter would be forwarded to the Registrar’s Legal Department for a citation to be issued.
Respondent did not complete the closet project pursuant to the Directive and the parties’ contract, and Respondent did not provide, to the Registrar, proof of refund to Complainants. As a result, on November 10, 2021, Investigator Fagerburg forwarded the Complaint for a citation against Respondent.
The Registrar issued a Citation on November 15, 2021, charging Respondent with possible violations of: Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code Section R4-9-108; and Ariz. Rev. Stat. § 32-1154(A)(22).
Ariz. Rev. Stat. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.”
Ariz. Admin. Code Section R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.”
Ariz. Rev. Stat. § 32-1154(A)(22) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.”
On November 30, 2021, Respondent’s Answer to the Citation was received by the Registrar. The Registrar subsequently noticed the matter for hearing.
Despite a Tribunal ORDER for the hearing to be conducted virtually, with either video or telephonic participation, Respondent failed to appear at the start time of the hearing, and failed to appear at any time during the time period in which the hearing was conducted.
After the Directive deadline had passed, Complainants reached out to multiple contractors with regard to completion of the project, eventually selecting California Closets to construct the master closet.
The hearing record clearly demonstrated in this matter that, as of the Directive deadline date of November 1, 2021, the closet project had not been completed by Respondent pursuant to the parties’ contract.
Administrative notice is taken of Respondent’s License Record with the Registrar, which reflects that Respondent’s license is currently suspended (as to three cases) with this matter as an open case.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. § 32-1101 et seq.
Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code section R2-19-119.
In this case, Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See Ariz. Rev. Stat. § 41-1092.07(G)(2); Ariz. Admin. Code Section R2-19-119(A) and Ariz. Admin. Code Section R2-19-119(B)(1); see also Vazzano v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960).
A preponderance of the evidence is:
The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.
Black’s Law Dictionary 1373 (10th ed. 2014).
5. Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").
6. “Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).
7. The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).
8. Construction is not a perfect art and, normally, contractors must be allowed an opportunity to correct poor workmanship before their licenses may be suspended or revoked as a result of a failure to comply with workmanship standards.
9. Regarding workmanship, Investigator Fagerburg found multiple workmanship issues existed at the time of the October 5, 2021 job site inspection. Following the issuance of the Directive mandating correction of those items by November 1, 2021, Investigator Fagerburg determined that those same workmanship issues remained uncorrected. Therefore, the Administrative Law Judge concludes that the Investigator-determined workmanship issues existed as of the Directive deadline and that Respondent failed to take corrective action pursuant to the Directive.
10. The Administrative Law Judge concludes that Respondent is in violation of the following statutes and rule:
a. Ariz. Rev. Stat. § 32-1154(A)(3), specifically Ariz. Admin. Code Section R4-9-108, for failure to perform all work in a professional and workmanlike manner; and
b. Ariz. Rev. Stat. § 32-1154(A)(22) for failure to take appropriate corrective action to comply with the Directive by the Directive deadline.
RECOMMENDED ORDER
Based on the foregoing, the Administrative Law Judge recommends that the Registrar impose discipline on Respondent’s ROC License 178030 in the form of revocation on the effective date of the Registrar’s final Order.
In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 40 days from the date of that certification.
Recommended this date, February 23, 2022.
/s/ Kay Abramsohn
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors